Supreme Court gives cities in California and beyond more power to crack down on homeless camps

Updated 3:14 p.m.

By Marisa Kendall, CalMatters

The U.S. Supreme Court today granted cities more power to arrest, cite and fine people who sleep outside in public places — overturning six years of legal protections for homeless residents in California and other western states.

In Grants Pass v. Johnson, the court sided with Grants Pass in a 6-3 decision, ruling that an ordinance passed by the Oregon city that essentially made it illegal for homeless residents to camp on all public property was not unconstitutional. Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — all Democratic appointees — dissented.

The much-anticipated decision overturns a prior influential Ninth Circuit Court of Appeals ruling, and means cities no longer are prohibited from punishing unhoused residents for camping if they have nowhere else to go. It will have major ramifications for how California leaders and law enforcement handle homeless encampments. 

Now it’s up to western cities to decide whether to use existing ordinances or pass new ones to banish, cite or arrest homeless campers when no alternative shelter exists.

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San Francisco is among cities ready to seize the new power. “This decision” Mayor London Breed told a news conference, “has really provided us with clarity that we will use in order to be a lot more aggressive with people who are choosing to stay on the streets of San Francisco — especially when we’re offering them help.”

Last year California cities and counties reported having roughly 71,000 emergency shelter or transitional housing beds. It would take more than twice that number to accommodate every unsheltered resident today.

“Homelessness is complex,” wrote Justice Neil Gorsuch, a Trump appointee, writing for the majority. “Its causes are many. So may be the public policy responses required to address it. At bottom, the question this case presents is whether the Eighth Amendment grants federal judges primary responsibility for assessing those causes and devising those responses. It does not.”

The Supreme Court ruled regulating camping on public property does not constitute “cruel and unusual punishment” under the 8th Amendment — a clause that the court said is restricted to limiting the type and severity of punishment, not the reason for punishment. And the types of punishment Grants Pass imposed on homeless residents — “limited” fines and a maximum jail sentence of 30 days — don’t qualify as cruel and unusual because they aren’t designed to impose “terror, pain or disgrace,” he wrote.

The court also rejected the homeless respondents’ claim that ordinances banning people from camping, if there is no shelter available, essentially criminalize the very act of being homeless. Anti-camping ordinances, such as those adopted in Grants Pass, don’t take status into account; they apply to homeless people, but they also apply, for example, to vacationing backpackers and student protesters camping in front of municipal buildings.

Sotomayor, in her dissent, argued the court’s opinion leaves society’s most vulnerable people with an impossible choice: “Either stay awake or be arrested.”

“Sleep is a biological necessity, not a crime,” she wrote, joined by Kagan and Jackson. “For some people, sleeping outside is their only option. The City of Grants Pass jails and fines those people for sleeping anywhere in public at any time, including in their cars, if they use as little as a blanket to keep warm or a rolled-up shirt as a pillow. For people with no access to shelter, that punishes them for being homeless. That is unconscionable and unconstitutional.”

Ed Johnson, lead counsel for the homeless respondents, said while today’s decision is disappointing, it’s important to remember that it’s not up to the courts to solve homelessness. 

“That job falls to all of us,” he said in a statement. “The solution to our homelessness crisis is more affordable housing.”

Activists supporting the civil rights of unhoused people decried the ruling, which they called the most important Supreme Court decision on homelessness in decades. They argued it could result in people getting arrested simply for being homeless. 

“The Supreme Court’s profoundly disappointing and unjust decision to overturn the Ninth Circuit’s ruling is a severe blow to the rights of unhoused individuals,” Jesse Rabinowitz, spokesperson for the National Homelessness Law Center, said in a statement. “Arresting or fining people for trying to survive is expensive, counterproductive, and cruel. While we are enraged, we are not surprised that this Court has again put the needs of the rich and powerful before the needs of everyday people struggling to get by.”

But groups including the League of California Cities, California State Association of Counties, and the California Chamber of Commerce cheered the decision, saying it would finally allow for the removal of unsafe, unsanitary encampments.

“This ruling removes the shackles that have held back efforts to humanely get our unhoused residents the shelter and help they need and will enable us to restore order to our streets, sidewalks and public spaces,” Jim Wunderman, president and CEO of the business-backed Bay Area Council, said in a statement.

Even California Gov. Gavin Newsom weighed in, filing a “friend of the court” brief in which he wrote: “Hindering cities’ efforts to help their unhoused populations is as inhumane as it is unworkable.”

This morning Newsom hailed the ruling. “This decision removes the legal ambiguities that have tied the hands of local officials for years and limited their ability to deliver on common-sense measures to protect the safety and well-being of our communities,” he said in a statement.

The issue of homeless encampments has had the unusual effect of uniting some Democratic officials with conservatives who also pushed for a crackdown.

“Californians should not have to tolerate the encampments that have taken over our communities,” Senate GOP leader Brian Jones, who has been pushing without success for a statewide camping ban, said in a statement. “With this decision, Democrat politicians can no longer justify allowing this severe public health and safety crisis to persist on our streets. It’s time to clean up California.”